Fry v. State

¶1*768OPINION ON STATE’S SECOND MOTION FOR REHEARING

¶2The question presented by this appeal has given this court great concern and has now sharply divided the court. On original submission, the court unanimously reversed the conviction. One judge wrote a concurring opinion. On rehearing, the concurring opinion was withdrawn and there was filed a dissenting opinion to the action of the majority in overruling without written opinion the State’s motion for rehearing.

¶3The State, in a second motion for rehearing, vigorously urges a careful reconsideration of the question, particularly in light of the fact situation presented.

¶4Upon an examination of the record in light of the State’s second motion for rehearing, I find that I can no longer agree with the majority, whom I have previously joined, and yet, while now agreeing with the result, I cannot accept much of the reasoning advanced by the dissenting opinion by Judge Douglas. Perhaps it is the approach used in each opinion which I cannot presently accept. The opinion on original submission beautifully expounds many of the abstract theories relating to the law of search and seizure, but fails, if it does, in an application of such principles to the facts of the particular case. Under any circumstances, the guidelines so essential, in this day and age of a new approach to criminal prosecution, to the bench and bar, and, yes, even to law enforcement officials, are missing. The dissenting opinion, on the other hand, appears to openly accept in its assessment of probable cause what was found as a result of the allegedly illegal search as well as testimony of witnesses given on the trial on the merits which was not shown to have been known to the officers at the time of the warrantless arrest and ensuing search. Certainly it is well established that probable cause for a search cannot be bolstered by the results or fruits of the search itself. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Gaston v. State, 440 S.W.2d 297, 302, n. 4 (Tex.Cr.App.1969) (concurring opinion).1

¶5As observed in the opinion on original submission,

“ . . . [pjrobable cause exists where the facts and circumstances within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime. Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968) . . . .”

¶6The State vigorously urges that it recognizes that the search incident to a valid arrest, with or without a warrant, is limited in its scope,2 but contends there was probable cause to search the trunk of the automobile in question completely independent of the scope of the search incident to the arrest. The State seeks to point out that in the same fact situation there may be probable cause for both.

¶7In Carroll v. United States, 267 U.S. 132, 158-159, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925), the court wrote:

“ . . . The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing *769officer has for belief that the contents of the automobile offend against the law.

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¶8And, as noted in footnote # 6 of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court said:

“In any event, as we point out below, the validity of an arrest is not necessarily determinative of the right to search a car if there is probable cause to make the search. Here, as will be true in many cases, the circumstances justifying the arrest are also those furnishing probable cause for the search.” 399 U.S. at 47, 90 S.Ct. at 1979.

¶9In the same opinion, the Court, in footnote # 8, wrote:

“Nothing said last term in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), purported to modify or affect the rationale of Carroll. As the Court noted:

‘Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543; see Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.’ 395 U.S., at 764 n. 9, 89 S.Ct. 2034.”

¶10The facts are most important in the assessment of probable cause.

¶11City Marshal J. A. Presley of Marble Falls was investigating a burglary in that town in which a citizens band radio had been taken. On January 24, 1970, he came in contact with one Johnny Yonnie,3 who told him that the appellant Fry had committed a burglary in Marble Falls and had a citizens band radio in his car. 'He also informed Presley that the appellant had “hit” a place in Austin and had a number of rings which he had also seen in the car. A description of the car was furnished. Presley had seen the car on several occasions and knew it bore California license plates.

¶12Yonnie revealed that the appellant also planned to burglarize Kuykendall’s Drug Store in Burnet sometime “soon.”

¶13Yonnie explained that the appellant had been staying at his house in Marble Falls and that he had seen the stolen merchandise in the appellant’s car.

¶14Yonnie had lived in Marble Falls for only a short time, but Presley knew him and considered him trustworthy.

¶15Presley relayed the information received to Elgin Shelburn, City Marshal of Burnet, about 2 p. m. on January 24th.

¶16Apparently, no effort was made to obtain an arrest or search warrant nor was there any indication that Presley believed, at this point, he possessed sufficient probable cause to obtain either from a magistrate.

¶17Marshal Shelburn related that while on patrol in Burnet on January 25, 1970, at approximately 1:30 a. m., he observed an automobile fitting the description parked in an alley behind a drug store. It had not been there fifteen minutes earlier. He kept his vehicle’s headlights on the parked brown Corvair with California license plate and called for assistance. His deputy arrived, blocking the other exit of the alley, and trained his vehicle’s lights on the parked Corvair. No movement inside the vehicle was observed.

¶18*770Within twenty minutes or so, a Highway Patrolman and Marshal Presley arrived, and the four officers approached the Cor-vair. The appellant was found on the back seat lying in a bed roll or blanket. The left side of appellant’s car could not be opened because some “superlong” whip an-tenas had been run through the door handles. The appellant was placed under arrest and a search incident to that arrest revealed a ring or rings.4 During the course of the arrest, Marshal Presley observed a mounting bracket for a Lafayette citizens band radio and the power cable and antenna wire hanging loose under the dashboard of the car.

¶19Thereafter, the officers made a warrant-less search of the locked trunk of the car finding a number of rings, shown to have been taken in the instant burglary; the citizens band radio sought by Officer Presley ; two telephones; a radio analyzer; two C. B. radio whip antennas, etc. ft is the admissibility of these items, or testimony concerning the same, of which the appellant complains.

¶20The prior opinions agree, although not harmoniously, that there was probable cause to make a warrantless arrest. See, Article 14.03, Vernon’s Ann.C.C.P. And, certainly, a search incident to that arrest was proper so long as it was within the scope permitted by Chimel v. California, supra.

¶21Now, at the time the warrantless search of the trunk took place immediately after the search incident to arrest, were the officers legally authorized to take the action they did, so that the fruits of such search were rendered admissible?

¶22The informer stated that he knew, of his own personal knowledge, where the stolen merchandise from two burglaries was, because he had personally seen such merchandise in appellant’s car. Thus, the first prong of the Aguilar test was met. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

¶23As to whether the informer was “credible” or his information “reliable” — the second prong of the Aguilartest — we note that Marshal Presley testified that he knew the informer Yonnie and considered him trustworthy. The length of acquaintanceship is not shown. Yonnie had lived in Marble Falls only a short time and did not work there. He was an informer of untested reliability, and there is no evidence that the officer made any independent investigation in an attempt to support the credibility of this first-time informer. See, Adair and Via v. State, 482 S.W.2d 247 (Tex.Cr.App.1972). Yantis v. State, 476 S.W.2d 24 (Tex.Cr.App.1972) ; Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App.1972). It is observed, however, that Officer Presley knew there was a car as described by the informer.

¶24The information received by Presley, including the fact that the appellant planned to be in Burnet “soon” to burglarize a drug store there, was relayed to Marshal Shel-burn in Burnet. Within a matter of hours, Shelburn, at 1:30 a. m., found the car described parked in an alley behind the drug store where it had not been fifteen minutes before. Upon the arrival of assistance, Shelburn approached the vehicle. The appellant was discovered therein. A search incident to a valid arrest pursuant to Article 14.03, supra, ensued. Such a search revealed a mounting bracket for a radio such as one being sought. A ring or rings were also found as a result of such incidental search. At this point of interception, every fact related by the informer, except the presence of the stolen merchandise described, was verified. Cf., e. g., Draper v. *771United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Rangel v. State, 444 S.W.2d 924 (Tex.Cr.App.1969); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970). The officers certainly had cause to believe that evidence of crime was concealed in the automobile.

¶25At this juncture, if not before, the officers obviously had probable cause to search the vehicle for all of the stolen property, independent of the search incidental to arrest, provided they were not required by law to first secure a search warrant under the circumstances.

¶26If the officers had left the car unattended on the public street or alley, it could have been easily moved out of the locality or jurisdiction by a friend, relative, confederate, or even by the appellant himself if he had secured his release on bail prior to the time the officers could have executed a written affidavit and contacted a magistrate. It should be remembered that the incident in question occurred at approximately 1:50 a. m. Clearly, exigent circumstances were presented which would have justified the warrantless search, there being probable cause to search.

¶27If the car had been placed under guard or removed and impounded at the police station until a search warrant had been procured, then this intrusion would have been just as great as the warrantless search ■of the car trunk in the alley.

¶28In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court said:

“Neither Carroll, supra,nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carrolland the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U.S. at 50-52, 90 S.Ct. at 1980-1981.

¶29I cannot agree that the search was unreasonable under the Fourth Amendment. See, also, Article 1 § 9, Texas Constitution, Vernon’s Ann.St.; Article 1.06, Vernon’s Ann.C.C.P. The evidence seized in the search of the car’s trunk and testimony relating to the same were admissible into evidence. I would grant the State’s second motion for rehearing, set aside the judgment of reversal and affirm the judgment.